Considered and decided by Hanson, Presiding
Judge, Schumacher,
Judge, and Stoneburner,
Judge.

U N P
U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellant Brian Thomas
Maznio appeals from a jury verdict finding him guilty of domestic assault and
fifth-degree assault. Because the
district court did not abuse its discretion in evidentiary rulings and the evidence
is sufficient to sustain the jury verdict, we affirm.

FACTS

Maznio
and Dawn Meyer lived together for four years and have a child in common. After Meyer obtained a Domestic Abuse Order
for Protection against Maznio for an incident of domestic abuse that occurred
on July 11, 2000, Jackson County initiated a child-protection action for
Maznio’s children from a prior marriage and the child he shares with
Meyer. At a July 26 initial hearing in
the child-protection matter, Maznio became distraught. The proceedings were continued, but Meyer,
Maznio, the guardian ad litem (Markus) and the county social worker assigned to
the case (Mattson) agreed to meet in the basement break room of the Jackson
County Human Services building to discuss visitation between Maznio and the
child he shares with Meyer.

The discussion
turned to Maznio’s wanting to say “goodbye” on his “last” visit with the
child. Meyer stated that (1) Maznio had
been making suicide threats and (2) she believed Maznio wanted to say goodbye
to their child because he was going to kill himself . In response to Meyer’s statement, Maznio became angry and made a
statement interpreted by the three witnesses as a threat.[1] Maznio reached down toward his right
leg. Mattson believed that Maznio was
“reaching for a weapon of some kind” because he heard an “unsnapping”
sound. Meyer believed that Maznio was
reaching for a knife she knew he sometimes carried in his boot. Maznio testified that he never carried a
knife in his boot, did not have a knife at the meeting and reached down to was
scratch his calf.

Mattson, believing
it necessary to call 911, started to stand up.
Maznio grabbed his arm. Mattson
grabbed Maznio’s arm. Markus, fearing
for Meyer’s safety, told Meyer to run.
Meyer fled the room. She
testified that she was frightened and was unable to open the door to get out of
the basement.

According to
Mattson, Maznio then pushed Mattson off of his chair onto the floor and ran out
of the room. Maznio testified that he
asked Mattson to “let go,” and when Mattson did not do so, Maznio pushed
Mattson. Mattson yelled for someone “to
pull the emergency button” and ran after Maznio. Maznio turned around, ran into Mattson in the hallway knocking
him to the floor, then ran up the stairs and left the building.

Subsequently,
Maznio was charged with terroristic threats, domestic assault, and fifth-degree
assault. Minn. Stat. § 609.713, subd. 1
(2000); Minn. Stat. § 609.2242, subd. 1(1) (2000); Minn. Stat. § 609.224, subd.
1(1)[2]
(2000). A jury found Maznio not guilty
of terroristic threats, guilty of domestic assault, and guilty of fifth-degree
assault. Maznio appeals, arguing that
(1) the district court abused its discretion by admitting evidence that he had
a habit of carrying a knife in his boot and evidence of prior acts of domestic
abuse and (2) there is insufficient evidence to support the verdict.

D E C I S I O N

1. Evidentiary rulings

Appellate courts
largely defer to the district court’s evidentiary rulings, which will not be
overturned absent a clear abuse of discretion.
State v. Kelly, 435 N.W.2d
807, 813 (Minn. 1989). If the district
court has erred in admitting evidence, the reviewing court determines whether
there is “a reasonable possibility that the wrongfully admitted evidence
significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2
(Minn. 1994). If there is a reasonable
possibility that the verdict might have been more favorable to the defendant
without the evidence, then the error is prejudicial. Id.

Habit Evidence

Evidence
of an individual’s habit despite whether corroborated or not and regardless of
the presence of eyewitnesses, “is relevant to prove that the conduct of the
person * * * on a particular occasion was in conformity with the habit.” Minn. R. Evid. 406. “Habit” is defined in the committee comment
as “‘one’s regular response to a repeated specific situation.’” Minn. R. Evid. 406 1989 comm. cmt. (quoting
Charles McCormick, Evidence § 195 (2d ed. 1972)). “Whether the response is sufficiently
regular and whether the specific situation has been repeated enough to
constitute habit are questions for the trial court.” Id. (citing Kenneth M. Lewan, The Rationale of Habit Evidence, 16 SYRACUSE L. REV. 39 (1964)).

Maznio contends that the district court abused its
discretion by permitting Meyer to testify that it was Maznio’s habit to carry a
knife in his right boot because the evidence lacked foundation. At trial, Meyer testified that (1) she and
Maznio knew each other for seven years and lived together for four years; (2)
during the four years she lived with Maznio she saw Maznio get dressed every
morning, regularly saw him putting on his boots, and saw him getting ready to
go out in the evening “[p]retty much everytime”; (3) Maznio owned what he
called a Buck knife for as long as she knew him; (4) Maznio had carried the
knife in his back pocket but in the last year, when he owed someone money,
started to carry the knife in his boot; (5) Maznio carried the knife in his
boot “[j]ust a couple of times”; and (6) Maznio started carrying the knife in
his boot more frequently in recent times.
Although the evidence was apparently admitted to prove that Maznio had a
knife in his boot on July 26, the evidence was also relevant to explain why
Maznio would know that the action of reaching for his boot would cause Meyer to
fear immediate bodily harm or death.

The
district court’s finding that there was sufficient foundation to admit evidence
that it was Maznio’s “habit” to carry a knife in his right boot on some
occasions is not a clear abuse of discretion and the evidence was otherwise
admissible to explain why Maznio would have reason to know that the action of
reaching for his boot would cause Meyer to fear harm. The district court did not abuse its discretion in admitting
evidence, in connection with the domestic assault charge, that Maznio was known
by Meyer to carry a knife in his boot.

It
is undisputed that Meyer did not share this information with Mattson, so the
habit evidence was not relevant to the fifth-degree assault conviction. Mattson’s belief that Maznio was reaching
for a knife was based on an “unsnapping sound” Mattson heard. There is nothing in the record indicating
that counsel for Maznio requested any type of limiting instruction about the
use of this evidence. But if there was
any error in allowing this testimony or failing to limit its application, the
error was harmless. Maznio was
acquitted of the charge of terroristic threats and his conviction of
fifth-degree assault against Mattson was based on evidence that Maznio knocked
Mattson to the ground in the break room and in the hallway and was unrelated to
the possibility of Maznio having a knife.
There is no reasonable possibility that the exclusion of this habit
evidence would have significantly affected the verdict of guilty of
fifth-degree assault against Mattson. See Post, 512 N.W.2d at 102 n.2.

Evidence of Prior Domestic Abuse

Evidence
of similar prior conduct by the accused against the victim of domestic abuse,
or against other family or household members, is admissible unless the
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issue, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence. “Similar prior conduct” includes * * *
evidence of domestic abuse * * * .

or assault” and the “infliction of
fear of imminent physical harm, bodily injury, or assault” against a family or
household member. Minn. Stat. §
518B.01, subd. 2(a), (b) (2000).

Maznio alleges
that the district court abused its discretion by admitting evidence of prior
acts of domestic abuse between Meyer and Maznio and contends that his
convictions of fifth-degree assault and domestic assault should be
reversed.

A two-part inquiry
is used to determine the admissibility of evidence of prior acts of domestic
abuse. State v. Waino, 611 N.W.2d 575, 579 (Minn. App. 2000). The first inquiry is whether “the challenged
testimony [is] evidence of similar prior conduct.” Id. The second inquiry is whether the “probative
value [of the testimony is] substantially outweighed by the danger of unfair
prejudice.” Id.

As to the first
inquiry, the state argues Maznio’s conduct on July 11, 2000 was similar to the domestic assault on
July 26, 2000. See Minn. Stat. § 634.20 (defining “similar prior conduct” as
domestic abuse). At trial, Meyer
testified that on July 11, 2000, an angry Maznio threw her head up against a
wall, hit her in the face on her eye and cheek with his fist, started to
choke her, and threatened that “he wanted to break every bone in [her]
body.” Meyers testified that Maznio
physically and verbally abused her on other occasions as well. Although Maznio did not physically assault
Meyer on July 26, his angry response to
statements by Meyer, despite the presence of the social worker and guardian ad
litem, is sufficiently similar to Maznio’s past angry assaults to satisfy the
first inquiry.

As to the second
inquiry, the probative value of Meyer’s testimony was not substantially
outweighed by the danger of unfair prejudice.
See Waino, 611 N.W.2d at 579 (noting that
“[w]hether the probative value of prior bad acts outweighs their prejudicial
effect ‘is a matter left to the discretion of the trial court’”) (quoting State v. Graham, 371 N.W.2d 204, 208
(Minn. 1985)).

Evidence of prior
acts of domestic abuse on the part of Maznio against Meyer helped to explain
the context in which the charged assault occurred.” Id. (“The evidence of
similar prior conduct by Waino against H.L. explains the context in which the
charged assault occurred.”) The
Minnesota Supreme Court “has ‘on numerous occasions recognized the inherent
[probative] value of evidence of past acts of violence committed by the same
defendant against the same victim.’” Id. (alteration in the original)
(quoting State v. Williams, 593
N.W.2d 227, 236 (Minn. 1999)). Meyer’s
testimony has significant probative value.

Furthermore, the district court mitigated any
prejudicial effect of Meyer’s testimony when it twice instructed the jury
regarding the prior-domestic-abuse evidence.
Id. (stating that the
“prejudicial effect” presented by testimony regarding similar prior conduct by
the defendant against the victim was “mitigated by the trial court’s cautionary
instruction to the jury.”) The district
court instructed the jury (1) during Meyer’s testimony, that Meyer’s testimony
regarding the July 11, 2000 incident was not the incident that Maznio was on
trial for, and (2) during final instructions, that the prior acts of domestic
abuse were admitted “for the limited purposes of assisting you in assessing the
relationship between the defendant and Dawn Meyer.” This instruction limited use of the evidence to the
domestic-assault charge, so admission of the evidence could not have affected
the verdict of guilty on the fifth-degree assault charge.

The district court did not abuse its discretion by admitting Meyer’s
testimony regarding prior acts of domestic abuse on the part of Maznio against
Meyer.

2. Sufficiency of evidence

In considering a
claim of insufficient evidence, this court’s review is limited to a careful
analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, is sufficient to allow the jurors to
reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430
(Minn. 1989). The reviewing court will
assume the jury believed the state’s witnesses and disbelieved any evidence to
the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the
verdict if the jury, acting with due regard for the presumption of innocence
and the requirement of proof beyond a reasonable doubt, could reasonably
conclude the defendant was guilty of the charged offense. State
v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

A
conviction “based entirely on circumstantial evidence merits stricter scrutiny
than convictions based in part on direct evidence.” State v. Jones, 516
N.W.2d 545, 549 (Minn. 1994) (citations omitted). “While it warrants stricter scrutiny, circumstantial evidence is
entitled to the same weight as direct evidence.” State v. Bauer, 598
N.W.2d 352, 370 (Minn. 1999) (citation omitted). The circumstantial evidence must form a complete chain that, in
view of the evidence as a whole, leads so directly to the guilt of the
defendant as to exclude beyond a reasonable doubt any reasonable inference
other than guilty. Jones, 516 N.W.2d at 549. A
jury, however, is in the best position to evaluate circumstantial evidence, and
its verdict is entitled to due deference.
Webb, 440 N.W.2d at 430.

Fifth-Degree
Assault

A person is guilty of fifth-degree assault if that
person “intentionally inflicts or attempts to inflict bodily harm upon
another.” Minn. Stat. § 609.224, subd.
1(2) (2000). “Intentionally” means that

[t]he actor
either has a purpose to do the thing or cause the result specified or believes
that the act performed by the actor, if successful, will cause that
result. In addition, * * * the actor
must have knowledge of those facts which are necessary to make the actor’s
conduct criminal and which are set forth after the word “intentionally.”

Maznio
argues that the evidence is insufficient to support his fifth-degree assault
conviction because he was distraught and attempting to flee the visitation
meeting and only “incidentally made contact with Mattson.” The evidence, however, shows that Maznio
affirmatively shoved Mattson to the floor of the meeting room with two hands,
supporting an inference that Maznio intentionally attempted to inflict bodily
harm on Mattson. The record further
indicates that Maznio’s contact with Mattson in the hallway was not incidental
but intentional because Maznio, making no attempt to avoid contact with
Mattson, “leaned a little bit and
squatted at [Mattson’s] shoulders” as he ran into Mattson. Maznio’s conduct gives rise to an inference
that he intentionally attempted to inflict bodily harm on Mattson by knocking
Mattson to the floor twice. A reasonable
jury could conclude that Maznio intentionally attempted to inflict bodily harm
on Mattson, thereby committing fifth-degree assault.

Domestic
Assault

A
person is guilty of domestic assault when he or she “commits an act with intent
to cause fear in another of immediate bodily harm or death” against a family or
household member. Minn. Stat. §
609.2242, subd. 1(1) (2000). A family
or household member includes “persons * * * who have resided together in the
past” and “persons who have a child in common regardless of whether they have
been married or have lived together at any time.” Minn. Stat. § 518B.01, subd. 2(b)(4), (5) (2000).

“With
intent to” is defined as an individual that “has a purpose to do the thing or
cause the result specified or believes that the act, if successful, will cause
that result.” Minn. Stat. § 609.02,
subd. 9(4) (2000). Intent is a
“subjective state of mind usually established only by reasonable inference from
surrounding circumstances.” State v. Schweppe, 306 Minn. 395, 401,
237 N.W.2d 609, 614 (1975)).

It is undisputed
that Meyer and Maznio are family or household members as defined by the
statute. Maznio contends that there is
no evidence that he intended to cause Meyer fear of immediate bodily harm or death. We disagree. Meyer was allowed to testify about Maznio’s prior acts of
domestic abuse and about her knowledge that he carried a knife in his boot on
some occasions. She testified that she
heard Maznio say, “Do you want to see how serious I am” and saw him reach for
what she believed was a knife in his boot.
Markus feared for Meyer and told her to run. Meyer testified that she ran in fear from Maznio and was so
frightened that she could not open the door to get out of the basement. A reasonable jury could conclude, based on
the evidence presented at trial, that Maznio caused Meyer to fear immediate
bodily harm or death, thereby committing domestic assault.

Affirmed.

[1] Mattson testified that
Maznio said, “[D]o you want to see how serious I am.” Markus testified that
Maznio said something like “[L]et’s just end it right here then.” Meyer testified that Maznio said, “We will
take care of that right now.” Maznio
testified that he said, “Fine, don’t believe me then and I will show you.”

[2] At trial Maznio, was found
guilty of assault in the fifth degree under Minn. Stat. § 609.224, subd. 1(2) (2000).

[3] In State v. Waino, the court stated with regard to Minn. Stat. §
634.20 that

[t]he supreme court has noted that by this section
the legislature has expressed an intent to remove evidence of similar prior
conduct in domestic abuse prosecutions from the clear and convincing standard
of rule 404(b).